Section 970.032. Preliminary examination; juvenile under original adult court jurisdiction.

 

(1)  Notwithstanding s. 970.03 , if a preliminary examination is held regarding a juvenile who is subject to the original jurisdiction of the court of criminal jurisdiction under s. 938.183 (1) , the court shall first determine whether there is probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183 (1) (a) , (am) , (ar) , (b) , or (c) , whichever is applicable. If the court does not make that finding, the court shall order that the juvenile be discharged but proceedings may be brought regarding the juvenile under ch. 938 .

(2)  If the court finds probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183 (1) (a) , (am) , (ar) , (b) or (c) , the court shall determine whether to retain jurisdiction or to transfer jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 . The court shall retain jurisdiction unless the juvenile proves by a preponderance of the evidence all of the following:

(a) That, if convicted, the juvenile could not receive adequate treatment in the criminal justice system.

(b) That transferring jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 would not depreciate the seriousness of the offense.

(c) That retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violation of which the juvenile is accused under the circumstances specified in s. 938.183 (1) (a) , (am) , (ar) , (b) or (c) , whichever is applicable.

1993 a. 98 ; 1995 a. 77 , 352 ; 1997 a. 35 , 205 ; 2005 a. 344 . This section does not violate a defendant's right to equal protection. State v. Martin, 191 Wis. 2d 647 , 530 N.W.2d 420 (Ct. App. 1995). The juvenile bears the burden of proof to demonstrate that the factors under sub. (2) support removing jurisdiction to the juvenile court. The removal decision is within the discretion of the trial court. State v. Verhagen, 198 Wis. 2d 177 , 542 N.W.2d 189 (Ct. App. 1995), 94-2823 . Sub. (2) (a) allows the trial court to balance the treatment available in the juvenile system and adult system and requires it to decide under the facts of the case which treatment will better benefit the juvenile. State v. Dominic E.W. 218 Wis. 2d 52 , 579 N.W.2d 282 (Ct. App. 1998), 97-2446 . Sub. (2) is not unconstitutionally vague. State v. Armstead, 220 Wis. 2d 626 , 583 N.W.2d 444 (Ct. App. 1998), 97-3056 . Sub. (2) makes no provision for the admission of hearsay at a reverse waiver hearing. When a statute does not specifically authorize hearsay, it is generally prohibited. State v. Kleser, 2010 WI 88 , 328 Wis. 2d 42 , 786 N.W.2d 144 , 07-2827 . A juvenile has a right to a reverse waiver hearing after the criminal court finds probable cause to believe that the juvenile has committed the exclusive original jurisdiction violation or violations of which he or she is accused. At the hearing, the juvenile must prove all elements set out in sub. (2) (a), (b), and (c) by a preponderance of the evidence. The juvenile must be given reasonable latitude to offer admissible evidence to satisfy his or her burden on the three elements, including evidence about the offense, supplementing the facts used to establish probable cause, to put the offense in context. The juvenile may not offer evidence at the hearing for the purpose of contradicting the offense charged. State v. Kleser, 2010 WI 88 , 328 Wis. 2d 42 , 786 N.W.2d 144 , 07-2827 . When a juvenile is charged in adult court with a violation of one of the offenses enumerated in s. 938.183 (1), the juvenile is entitled to a preliminary examination under sub. (1) at which the court must find that there is probable cause to believe that the juvenile has committed the violation of which he or she is accused if the adult court is to retain exclusive original jurisdiction of the juvenile. This means that the court should make a specific finding on the record that there is probable cause to believe the juvenile committed the specific s. 938.183 (1) crime charged in the complaint. State v. Toliver, 2014 WI 85 , 356 Wis. 2d 642 , 851 N.W.2d 251 , 12-0393 . If an adult court's determination of probable cause in a preliminary examination under this section relates to an unspecified felony and the facts are undisputed, an appellate court may review the record independently to determine whether the court did find probable cause to believe that the juvenile has committed the violation of which he or she is accused. State v. Toliver, 2014 WI 85 , 356 Wis. 2d 642 , 851 N.W.2d 251 , 12-0393 .